Saturday, October 6, 2007

The creation of a new fund to support the study of entrepreneurship, free market capitalism, individual liberty and limited government at the University of Illinois at Urbana-Champaign has sparked controversy at the midwestern campus. Some Illinois faculty are concerned the creation of the Academy on Capitalism and Limited Government represents an end-run around faculty governance to advance a right-wing ideological agenda. As Inside Higher Education reports, some faculty see the Academy as

a move by conservative alumni with influential national support to bypass normal faculty governance, create new courses and impose ideological tests on who gets certain pots of money. The alumni who have given the money for the effort, currently housed at the university’s foundation, are explicit that they want a formal role in who gets money from the fund, the views those people should have, and the eventual goal of creating a new version of the Hoover Institution at a top public university, with the ambition of inspiring others to follow their model.

As a result of those statements and other concerns, professors at the university are debating whether the new academy is appropriate for the university. Some like the program, others think it could work with certain oversight provisions, and others find the entire idea questionable.

The Academy officially launched this past week with a half-day conference featuring Steve Forbes and UIUC alum Robert Novak. For more on the controversy, see here, here, and here.

The National Federation of the Blind's Committee on Automotive and Pedestrian Safety is concerned that hybrid vehicles are too quiet when running at slower speeds, because some blind people rely upon their ability to hear automobiles when crossing streets or walking through parking lots. The NFIB is quick to add that they are not opposed to such vehicles, however. They just want them to make some more noise.

My latest media analysis article for the Saturday Rocky Mountain News/Denver Post looks at coverage of the Denver opening of the play My Name is Rachel Corrie. BTW, although my article is critical of the coverage, I think that most of the time Denver Post theater critic John Moore does excellent work.

There is no federal law prohibiting discrimination based on sexual orientation in private employment, though such protection was first introduced by Bella Abzug in 1974. Courts have consistently read Title VII’s ban on sex discrimination to leave out protection from anti-gay discrimination. Currently, in 31 states, including all of the South and most of the Midwest and West, there is no statewide protection for gays in private employment.

A controversy has been brewing among gay-rights advocates over how expansive to make a new federal law, the Employment Non-Discrimination Act (ENDA), which would protect gay people from private employment discrimination. On one side of the controversy are activists, including a large number of civil-rights and gay organizations, who want the new law to protect both gay and transgendered employees from discrimination. They fear that if trans protection is not included in ENDA, Congress will not act to protect transgendered people anytime in the near future. They argue this is a matter of principle: gay people should wait until “everybody” in the “GLBT community” can get protection – however long that might take. They vow to actively oppose any bill that does not include both groups.

On the other side are various commentators (see, for example, here and here and here and here) and Rep. Barney Frank (D-MA), who claim that ENDA cannot pass Congress if protection for transgendered employees is included. They support a new version of the bill that would protect gay employees, but leave protection for the transgendered for another day. They argue this is a matter of pragmatism: civil rights legislation proceeds incrementally, through a process of education and adjustment, and has never protected “everybody” and everything all at once.

Enter Lambda Legal, the national legal outfit representing gay people in everything from immigration to marriage to employment. Lambda claims that, aside from the cruelty of leaving transgendered people out of ENDA, there is self-interest for gay people at stake in including protection for “gender identity” as well as “sexual orientation” in the bill. In an open letter to Frank, Lambda argues:

We have no doubt that, were the weaker version of ENDA to pass, some employers will
claim they have nothing against lesbians, gay men and bisexuals per se,
but that they do not want men whom they see as unmanly or women who they
believe are not feminine enough, and loophole would be invoked against
almost any lesbian, gay man or bisexual who sought protection against
discrimination under ENDA.

That is, according to Lambda, an employer might successfully argue that it did not object to gay people as such, but it didn't want any employee (gay or straight) who appeared to the employer to be gender nonconforming. So, under this hypothesis, an employer could get around the gay-only version of ENDA by claiming that it fired a lesbian for being “too mannish” rather than lesbian. Or it could claim that it fired a gay man for his effeminacy rather than his homosexuality.

As a factual matter, it would be passing strange to see such a case, since almost every instance of discrimination for gender nonconformity is accompanied by direct and explicit evidence of anti-gay discrimination (e.g., calling an effeminate man a "fag"). It would not be hard for a court or jury, and certainly would not be hard for Lambda's skilled lawyers, to pierce the pretext that the employer was not really engaged in anti-gay discrimination and thus violating the "weak" version of ENDA.

Indeed, we now have decades of experience with state laws that protect gay people from discrimination based on sexual orientation but not gender identity. If the inadequacy of sexual-orientation protections were a real problem — as opposed to a hypothetical or theoretical one — we should expect to see many such cases. But neither Lambda nor any other organization has yet produced a single instance in which an employer successfully argued around a gay-only employment protection law by claiming that it really fired the person for gender non-conformity.

Lambda points to one such case in its letter to Frank:

For example, just two years ago, a federal court of appeal ruled that a
lesbian who claimed that she was discriminated against because she did not
conform to stereotypical expectations of femininity did not to have a
viable claim under New York state's Sexual Orientation Non-Discrimination
Act (SONDA), which fails to include an express prohibition on
discrimination based on gender identity and expression.

Curious about this example, I looked it up. The case Lambda refers to is Dawson v. Bumble & Bumble, 398 F.3d 211 (2nd Cir. 2005). Sure enough, it does not support Lambda's argument and, if it's relevant at all, shows the opposite of what Lambda suggests. A "weak" version of ENDA would have helped the plaintiff's case.

In the case, a lesbian named Dawn Dawson worked in a hair salon full of gays, lesbians, gender benders, and general nonconformists. After a year, she was fired by her pre-op transsexual boss. As is common in employment-discrimination cases, the employer claimed she was fired for poor performance (rudeness and inconsistency) and the employee claimed illegal discrimination. Dawson asserted she was discriminated against based on her sex, her sexual orientation, and the fact that she was a masculine-appearing woman. She said this violated both federal and state law. She lost on summary judgment on both counts — but her loss had nothing to do with the failure to include "gender identity" in either state or federal law or with the hair salon’s ability to say it likes gays but not gender benders.

(1) Federal claim in Dawson

First, take the federal claim Dawson made. Under Title VII, federal law already generally forbids discrimination based on sex stereotyping (e.g., a woman perceived as too "mannish") under the Supreme Court’s 1989 decision in Price Waterhouse v. Hopkins. The problem is that courts are afraid to let gays claim such discrimination because they suspect it’s a way for gays to sneak sexual orientation protection into the law. Consider this passage from the opinion:

[I]ndividual employees who face adverse employment actions as a result of their employer’s animus toward their exhibition of their behavior considered to be stereotypically inappropriate for their gender may have a claim under Title VII. When utilized by an avowedly homosexual plaintiff, however, gender stereotyping claims can easily present problems for an adjudicator. This is for the simple reason that “[s]tereotypical notions about how men and women should behave will often necessarily blur into ideas about heterosexuality and homosexuality.” [citation omitted]. Like other courts, we have therefore recognized that a gender stereotyping claim should not be used to “bootstrap protection for sexual orientation into Title VII.” 398 F.3d at 218.

If a heterosexual plaintiff claims gender stereotyping, she has a claim. But if an “avowed homosexual” plaintiff claims gender stereotyping, courts get very suspicious that it’s an attempt to sneak sexual orientation protection into Title VII under the guise of interpretation.

Make of that concern what you will, but the sexual-orientation-only version of ENDA might have helped Dawson in two ways. First, she could have made a straightforward sexual orientation claim (though that claim might have run into other problems particular to her case). Second, she might have a made a successful gender-stereotyping claim because, since federal law will now protect gay people from discrimination, courts will not have to worry about gender stereotyping claims "blurring" into sexual orientation claims. They will not be so anxious about letting gay plaintiffs sneak sexual orientation protection into federal law: it will already be there. I want to be cautious on this second point. ENDA is not a formal amendment of Title VII, and thus existing precedent about the exclusion of gays from sex stereotyping claims could remain in full force under that law. But that is true regardless of whether a "weak" or "strong" ENDA passes.

In other words, Dawson lost on her federal claim precisely because federal law does not prohibit discrimination based on sexual orientation. Of course, a trans-inclusive ENDA that prohibits both sexual orientation and gender-identity discrimination would protect her as well. But so would the new version of ENDA that prohibits only sexual orientation discrimination since courts might no longer feel that they have to limit sex-stereotyping claims to heterosexuals.

But it gets worse for Lamda's position. Dawson didn’t even present competent evidence that she was fired for gender nonconformity.

[I]n contrast to the plaintiff in Price Waterhouse, who proffered evidence that her promotion to partnership depended upon her changing her behavior to better conform to gender stereotypes, . . . Dawson has produced no substantial evidence from which we may plausibly infer that her alleged failure to conform her appearance to feminine stereotypes resulted in her suffering any adverse employment action at the hands of Bumble & Bumble. Thus, her Title VII claim based upon a gender stereotyping theory must fail. Id. at 222-23.

Thus, on the record, Dawson was not even fired for being a gender bender. How then could it be, as Lambda asserts, that she lost because her employer accepted gays but not gender-benders? There is nothing in the court’s opinion that comes even close to saying that.

(2) State claim in Dawson

Dawson also claimed that she had been discriminated against based on her sexual orientation in violation of New York state law (which explicitly protects gays, but not transgenders). She lost on this claim because the only evidence of any discrimination based on her sexual orientation came from statements made by two co-workers who apparently had no role in the decision to fire her. Thus, she presented no evidence that she had actually been fired for being a lesbian. Id. at 224-25.

She did not lose this state-law claim, as Lambda suggests, because New York failed to include “gender identity” in its law and her employer successfully argued that it fired her based on her gender non-conformity and not her sexual orientation. Adding gender identity to New York law would not have saved this employee in a case where she produced no sufficient summary judgment evidence that she had been fired either for gender bending or for sexual orientation.

Lambda also claims in its letter to Frank that if gender identity is deliberately stripped from ENDA, "increasingly conservative" courts might interpret this as signalling Congress' desire to eliminate gender-stereotyping claims of the type recognized in Price Waterhouse, thus exposing effeminate gay men and masculine lesbians to discrimination for gender nonconformity rather than sexual orientation. I suppose anything is possible, but this scenario builds wild speculation upon dubious hypothesis.

First, nothing determinate about Congress's "intent" can be inferred from such drafting changes. Silence about "gender identity" might simply indicate an intent to leave out trangendered people (and most likely, the narrower class of transsexuals who are surgically altered or who live life fully as a member of the opposite sex) or it might indicate Congress thinks there's already sufficient protection for gender nonconformity in existing interpretation of Title VII (under Price Waterhouse) or it might mean there weren't enough votes for a more comprehensive bill or it might mean nothing at all.

Second, the least likely judicial interpretation of congressional silence on gender identity is that Congress meant to overrule two decades of federal court precedent based on a standing Supreme Court decision. The reasoning of Price Waterhouse on sex stereotyping as a form of prohibited "sex discrimination" holds regardless of what ENDA includes. There will be no legislative history to suggest that Congress meant to overrule Price Waterhouse by excluding gender identity from the bill. Effeminate gay men and masculine lesbians would have potential claims under the "weak" ENDA for sexual orientation discrimination and would also likely have stronger claims for sex stereotyping under Title VII.

Third, for reasons discussed above, even if courts strained to infer that Congress meant to overhaul sex-discrimination law silently by passing a "weak" ENDA, even that would not hurt gay plaintiffs making sexual-orientation discrimination claims under ENDA. There are no reported cases yet in which an employer successfully made the contorted we-like-gays-but-not-gender-nonconformists claim Lambda hypothesizes. Nor, as a factual matter, should we expect such cases.

One thing is clear: federal law does not currently protect transsexuals (as opposed to manly women or effeminate men) from discrimination in private employment based on their transsexuality. ENDA is probably the best chance to protect transsexuals from private employment discrimination nationwide in the near future. But if Frank is right that the bill can't pass with gender identity included, it's hard to see what a trans-inclusive ENDA would accomplish for the transgendered until members of Congress are "educated" about the matter. Nobody knows how long that might take. Another uncertainty is whether, even if ENDA passes the Senate, President Bush would sign it. A trans-inclusive ENDA would make both Senate passage and presidential signature less likely than they already are.

If Lambda and other groups want to insist that ENDA should be trans-inclusive no matter what the cost to gay people in 31 states who are now without statewide employment protection and aren't likely to get it anytime soon, that's fine. They can certainly do so as a matter of principle, or morality, or fairness, or political coalition-building. But their legal argument about the inadequacy of the "weak" ENDA for gay Americans is makeweight. They should stop trying to argue that laws protecting gay people from discrimination don't really protect gay people from discrimination.

I admit that most of the blogs I visit regularly are law or policy-related. But, like Eugene and David, there are some others I like to check out.

I love movies, so there are a decent number of movie-oriented sites I like to visit. One is the film blog Libertas, "a forum for conservative thought on film," created by my college friend Jason Apuzzo, founder of the Liberty Film Festival. I don't know if Ain't It Cool News actually qualifies as a blog, but it's a site I religiously for links to the latest movie trailers, news, and rumors about movies underway. It publishes lots of junk, but it's also the best place for trailer links, on-the-set video footage, and rumors about certain types of movies.

I suspect most VC readers are familiar with Wonkette, the D.C. political gossip blog. If you find that site fun, you might like some of Gawker Media's other sites. Two I check out (and actually prefer to Wonkette since Ana Marie Cox and David Lat left), are Idolator (music) and Deadspin (sports).

As a Philadelphia native, I would be remiss if I did not mention some Philly team sports blogs. The best Philadelphia Eagles blogs, for instance, are Iggles Blog and Bleeding Green Nation. Hockey season is underway, and I have high hopes for the Flyers, so I'll be visiting Flyers Fan Central regularly too.

Friday, October 5, 2007

An all-female law firm is turning heads in Chicago with a new billboard and a blunt message:

"Life's Short. Get a Divorce."

The billboard, sponsored by Fetman, Garland & Associates, Ltd., a firm that specializes in divorce cases, features the six-pack abs of a headless male torso and tanned female cleavage heaving forth from a black lace bra....

"It's grotesque," said John Ducanto, past president of the American Academy of Matrimonial Lawyers. "It's totally undignified and offensive."

"It trivializes divorce and I think it's absolutely disgusting," Rick Tivers, a clinical social worker at the Center for Divorce Recovery in Chicago, told ABC News....

Ducanto called on the Attorney Registration and Disciplinary Committee of Supreme Court of Illinois to sanction [lawyer Corri] Fetman.... But the ARDC's deputy administrator James Grogan told ABC News that traditionally Illinois has been reluctant to sanction lawyers for anything short of false or misleading advertising....

"This has to be the Academy Award of bad taste," [leading divorce lawyer Raoul] Felder told ABC News.... Karen Enright, president-elect of the Women's Bar of Illinois, shared similar feelings. "It's actually a disappointment to the profession and to the institution of marriage, which is something our community holds as sacred," she said. "Our profession, and lawyers in general, have been under attack for advertisements similar to this and I think," she said, pausing. "I think that it's not in good taste." ...

"Lawyers don't cause divorces. People cause divorces," [Fetman replies]. "If you think somebody's going to look at a billboard and go out and get a divorce as a result, you're insulting the intelligence of people. If that's the case, our next billboard is going to read, 'Gimme Your Money.'" ...

"Everybody's got a pretty good sense of humor in this neighborhood," said Greg Horan, director of operations for Gibson's Steakhouse, one of the three restaurant/bars [near the billboard] .... "We don't endorse it or anything, but sure, people will look up and get a chuckle out of it."

As to the legal question, I think it's unlikely that the state bar would punish the lawyer, and such punishment would probably be unconstitutional. It's possible that the Court would uphold restrictions on lawyer advertising when the advertising is seen as reflecting poorly on the legal profession; see Florida Bar v. Went for It (1995). But I doubt that Went for It would go that far (and I'm not sure whether Went for It would be decided the same way today, given that Justice Thomas, one of the votes in the five-Justice majority, has since shifted to being far more protective of commercial speech rights).
As to the taste question, my tentative sense is that this is indeed in poor taste, though on the other hand it is pretty clearly a joke — maybe it's not much different from other humor that makes light of sad situations.

Some of us at UCLA Law School have been experimenting with a new student participation system: Students in our classes have been issued what we call "clickers" -- electronic devices a little larger than a pocket calculator -- on which they can anonymously respond to professors' questions. When I start the corresponding program on the in-class computer, I can pose students' questions, and then get their reactions. The system, I'm told, can be used for many purposes, but right now I'm mainly using it to (1) quiz students to make sure they understand the legal rules, using questions that do have a right answer, and (2) ask students' views about policy questions.

Just today, I had a particularly interesting experience that I doubt I would have had without the clickers. My criminal law class is covering the law of rape, and we were talking about State v. Alston, a controversial 1984 North Carolina case involving the question of how much evidence of force is needed to prove rape. We discussed the facts (as reported in the appellate decision) in considerable detail, and discussed the court's legal ruling.

But I then asked the students to imagine themselves as jurors, and to answer whether -- given the facts -- they would have found the defendant guilty beyond a reasonable doubt of forcible rape (as the jury in Alston did, though the appellate court reversed). I also asked women and men to give separate answers (women A and B for proven beyond a reasonable doubt / not proven, men C and D for proven / not proven); and note that the answers are all anonymous.

Sixty students answered, out of a class of 81 (of whom I imagine 70 to 75 were present). This included 25 of 41 women and 35 of 40 men, a higher rate of abstention -- or absence -- on women's part, but a high participation rate for both sexes. The answers were:

I stressed to students, of course, that this was not a large sample, and most certainly not one representative of the country as a whole. But I think it ended up being a useful perspective for the students, in highlighting to everyone both (1) how close the division was, and (2) how little gender gap there was (with men actually being a little more likely than women to find rape proven beyond a reasonable doubt, but I'm not sure not to any statistically significant degree). My sense is that this was an important pedagogical tool, chiefly because it helped show people how people of their own age, sex, and social class can disagree on such matters (whether or not they conclude that such disagreement is indeed warranted).

As importantly, I doubt that I'd have gotten nearly as much response, or as candid a reaction, if I'd just asked for a show of hands instead of an anonymous clicker vote. And even if I had gotten candid responses, I doubt that students would have had confidence in that candor. So I was very pleased with how the clickers worked here.

Eighth Circuit Holds That Thermal Imaging Warrant Requires only Reasonable Suspicion:
Here's a fascinating new decision on how the Fourth Amendment regulates thermal imaging devices: United States v. Kattaria. In this case, the Eighth Circuit (Loken, joined by Wollman and Gibson) rules that the police only need reasonable suspicion to obtain a "warrant" to conduct thermal imaging monitoring of a home. The Court's rationale is based on a policy argument:

If the same probable cause is required to obtain both [warrants to search homes and warrants to use imaging devices], law enforcement will have little incentive to incur the expense of a minimally intrusive thermal imaging search before conducting a highly intrusive physical search. For these reasons, we are inclined to believe that the same Fourth Amendment reasonable suspicion standard that applies to Terry investigative stops should apply to the issuance of a purely investigative warrant to conduct a limited thermal imaging search from well outside the home.

Where, as here, the Government uses a device that is not in general public use, to explore details of the home that would previously have been unknowable without physical intrusion, the surveillance is a "search" and is presumptively unreasonable without a warrant.

The Kattaria court concludes that a "warrant" as used in Kyllo could be based on the Terry stop reasonable suspicion standard. But I don't think there is much of a reason to think this: The Kyllo Court referred explicitly to a warrant, and the word "warrant" is normally used to mean a probable cause warrant. The Kattaria court notes that there are some kinds of warrants that have been upheld that are not based on probable cause to believe a crime has been committed, such as administrative warrants. That's true, but they are all in the context of "special needs" cases arising outside the context of criminal investigations. This case is not a special needs case, it's a straightforward drug case. I have never heard of a Terry-stop "warrant," and I think the Court is being rather creative in inventing one. I can understand the policy argument for the new rule, but I think it's hard to square with existing precedents.

As best I can tell, this decision creates a split with the Ninth Circuit but is not itself certworthy; the Kattaria court added an alternative holding that probable cause existed even if it wasn't needed, effectively insulating this particular case from Supreme Court review. But I suspect we'll see this issue in another case, and eventual Supreme Court review seems reasonably likely. Stay tuned. Thanks to Howard for the link.

UPDATE: This was amended a bit after I realized that one of my arguments misread a line in Kyllo.

JUSTICE BLACKMUN's dissent would retain a judicial warrant requirement, though agreeing with our subsequent conclusion that reasonableness of the search does not require probable cause. This, however, is a combination that neither the text of the Constitution nor any of our prior decisions permits. While it is possible to say that Fourth Amendment reasonableness demands probable cause without a judicial warrant, the reverse runs up against the constitutional provision that "no Warrants shall issue, but upon probable cause." Amdt. 4. The Constitution prescribes, in other words, that where the matter is of such a nature as to require a judicial warrant, it is also of such a nature as to require probable cause. Although we have arguably come to permit an exception to that prescription for administrative search warrants,[fn 4] which may but do not necessarily have to be issued by courts, we have never done so for constitutionally mandated judicial warrants. There it remains true that "[i]f a search warrant be constitutionally required, the requirement cannot be flexibly interpreted to dispense with the rigorous constitutional restrictions for its issue." Frank v. Maryland, 359 U.S. 360, 373 (1959). JUSTICE BLACKMUN neither gives a justification for departure from that principle nor considers its implications for the body of Fourth Amendment law.

Oddly, the Kattaria court does not cite Griffin. Instead, the Eighth Circuit cites its own precedent in United States v. Lucas, No. 05-2165, slip op. at 8-9 (8th Cir. Aug. 23, 2007) (en banc), for the view that "the Court has upheld administrative warrants as reasonable without a showing of probable cause in various contexts." But the Kattaria court ignores the key passage from Griffin in which the Court expressly limits the use of non-pc warrants outside the context of administrative warrants.

The Washington Supreme Court has just struck down a state statute that bars

political advertising or an electioneering communication that contains a false statement of material fact [made with with knowledge of falsity or with reckless disregard as to truth or falsity] about a candidate for public office [except] statements made by a candidate or the candidate's agent about the candidate himself or herself.

The government, a majority of the court held, generally lacks the power to restrict even knowingly or recklessly false statements, except in defamation lawsuits brought by the defamed person: The plurality took the view that "only defamatory statements ... are not constitutionally protected speech"; the concurrence seemed to agree, reasoning that the statute "is unconstitutionally overbroad" because it "prohibits nondefamatory speech in addition to defamatory speech." (In this, the Court reaffirmed and extended an earlier decision, Public Disclosure Commission v. 119 Vote No! Committee, 957 P.2d 691 (Wash. 1998).)

1. False Statements of Fact Exception or Libel Exception? The trouble is that the Supreme Court's tolerance for restrictions on knowingly or recklessly false statements of fact extends considerably beyond libel law:

The Court has expressly upheld the false light tort, which compensates people for the emotional injury of having false or misleading statements said about them that "would be highly offensive to a reasonable person," even when the statements don’t damage the subject’s reputation. Time, Inc. v. Hill (1967).

The Court has suggested, in Brown v. Hartlage, that knowingly or recklessly false statements in election campaigns are generally punishable. The Court struck down the statute involved in that case on the grounds that it didn't have a knowledge/recklessness requirement, but it reasoned that "There has been no showing in this case that petitioner made the disputed statement other than in good faith and without knowledge of its falsity, or that he made the statement with reckless disregard as to whether it was false or not. Moreover, petitioner retracted the statement promptly after discovering that it might have been false. Under these circumstances, nullifying petitioner's election victory was inconsistent with the atmosphere of robust political debate protected by the First Amendment."

Lower courts have generally upheld trade libel law, which imposes liability for (at least) lies about people's and corporations' products, not just about the people themselves. Cf. Bose Corp. v. Consumers Union, 466 U.S. 485 (1984) (assuming, without deciding, that trade libel should be treated like normal libel).

Only in one situation has the Court strongly suggested that even some recklessly or knowingly false statements are constitutionally protected: New York Times v. Sullivan (1964) and Rosenblatt v. Baer (1966) strongly suggest that the law can't punish even deliberate lies about the government (the traditional definition of "seditious libel"), so long as no particular person is mentioned.

Finally, the somewhat opaque R.A.V. v. City of St. Paul holds that the government often may not selective punish some false statements but not others; but there are several substantial exceptions to this doctrine — "[w]hen the basis for the content discrimination [within the unprotected category] consists entirely of the very reason the entire class of speech at issue is proscribable," when "the subclass happens to be associated with particular 'secondary effects' of the speech [unconnected to the persuasive or offensive communicative impact of the speech], so that the regulation is ‘justified without reference to the content of the ... speech,'" when "a particular content-based subcategory of a proscribable class of speech can be swept up incidentally within the reach of a statute directed at conduct rather than speech," and when "the nature of the content discrimination is such that there is no realistic possibility that official suppression of ideas is afoot."

So the unresolved First Amendment question is: Is there a general First Amendment exception for knowingly or recklessly false statements of fact, with a few exception-to-exception zones of categorical protection (such as false statements about the government, or perhaps false statements about history or science)? Or is there a set of narrower First Amendment exceptions for defamation (said with the proper mental state), speech that puts someone in a false light, fraud, perjury, false statements to government officials, trade libel, and the like, with a broad zone of protection even for false speech outside these narrow exceptions?

My reading of the cases is that they rest on the theory that "there is no constitutional value in false statements of fact" (Gertz v. Robert Welch, Inc. (1974)) and that such statements may be punished at least when said with knowledge that they're false or with reckless disregard of falsehood. This supports the general-First-Amendment-exception theory. On the other hand, the Court has never made that explicit.

Moreover, even if only certain categories of false statements are punishable, the Court's upholding the false light tort (in Time, Inc. v. Hill and Cantrell v. Forest City Publishing, Inc. (1974)) suggests that knowingly or recklessly false statements — including nondefamatory ones — about particular people are indeed punishable. The plurality distinguishes false light in footnote 7 by reasoning that "The Supreme Court has indicated that false statements about private individuals made with actual malice, but which are not defamatory, may not be protected speech" but that "the Court has not held that false statements about public figures made with actual malice, but which are not defamatory, are devoid of all constitutional protection." Yet that doesn't seem consistent with Hill and Cantrell, which didn't turn on whether the plaintiff was a public or private figure. In fact, Cantrell noted that

[T]his case presents no occasion to consider whether a State may constitutionally apply a more relaxed standard of liability for a publisher or broadcaster of false statements injurious to a private individual under a false-light theory of invasion of privacy, or whether the constitutional standard announced in Time, Inc. v. Hill applies to all false-light cases.

Both these options seem to acknowledge that liability for falsehoods said with "actual malice" would be available in "all false-light cases," whether brought by private figures or public figures — the question is whether there should be an extra zone of liability for negligent falsehoods when the plaintiff is a private person. It thus seems to me that the dissent is right in concluding that false statements about particular candidates can be punishable even if they aren't defamatory.

2. Is the Law Too Narrow? The plurality also suggested that the law was unconstitutional because it was too narrow, since it banned only knowingly/recklessly false statements about other political candidates, and not knowingly/recklessly false statements about any candidate (including yourself), or for that matter knowingly/recklessly false statement about any other person.

But I think the dissent is basically right on this, too: If the speech falls within an unprotected category, then even a limited restriction is constitutional if it complies with R.A.V. The premise for the false statements exception, especially as applied to false light actions, is a combination of the theory that (1) false factual assertions undermine the search for truth in public discussion, and (2) false statements about a particular person especially hurt the subject. This suggests that in the Washington statute, the "basis for the content discrimination [within the unprotected category] consists entirely of the very reason [or, here, reasons] the entire class of speech at issue is proscribable": The law is punishing statements that are especially dangerous to public discussion (since they are about elections, where sound decisionmaking is especially important, and a decision must be made by the election day, so falsehoods may therefore be especially damaging), and that are especially likely to hurt a particular person (which explains the exception for false statements about yourself). I'm not wild about the exception for knowingly/recklessly false statements about one's own qualifications, but it doesn't seem to make the law invalid.

3. Is It Improper To Have the Law Be Enorced by an Administrative Agency? Here, unlike in a libel lawsuit, or even in a criminal libel prosecution (which the Court seemed to uphold in Garrison v. Louisiana (1964), when such prosecutions are limited to knowingly or recklessly false statements), the finding of falsehood is made by an administrative agency — the Public Disclosure Commission — and not by a judge or jury. And I agree with the plurality that such findings can't stand unless there is independent review by a court of "whether whether there is clear and convincing evidence the respondent uttered the statements with actual malice"; many cases so hold. But I tend to think that the dissent correctly concludes that the remedy for that is to mandate independent review as a constitutional matter, not to strike down the statute altogether.

* * *

So my tentative view is that the dissent is correct, and that the law should have been upheld, even as applied to nondefamatory speech. My sense is also that this case is a good candidate for Supreme Court review, since there's a pretty square split on this general question at least between the Washington Supreme Court and the U.S. Court of Appeals for the Sixth Circuit. On the other hand, my sense is that there isn't much other caselaw on this from other circuit courts and other state supreme courts (there is some from intermediate courts of appeals, but they generally don't count much when the Court is measuring the magnitude of a split), so maybe the Court would decide to let the issue percolate in the lower courts for some more years.

Note also that Washington didn't petition the Supreme Court for certiorari in the earlier case on this subject (119 Vote No! (1998)); perhaps the state again won't ask the Court for review here.

Thursday, October 4, 2007

More on Obama and the Flag Pin:
Eugene suggests below that Barack Obama's decision not to wear an American flag pin is a bad move because "[t]he American people want a President who loves their country and who expresses that love, at an emotional as well as an intellectual level." I am not an expert in political campaigns, but I have a different take.

First, it seems to me that Obama isn't trying to win the votes of "the American people" right now. He's trying to win the Democratic nomination, and presently he is pretty far behind the leading candidate Hillary Clinton. Given that, Obama's decision not to wear the pin strikes me as either irrelevant or rather shrewd. It may be shrewd because among likely Democratic primary voters, wearing an American flag label pin is widely interpreted as the sort of right-wing Fox News flag-waving effectively parodied on the Colbert Report.

Liberals think of the flag pin as part of Bush's attempt to sort of snooker the country through misdirection. They think Bush uses his patriotism as a way of getting people to stop paying attention while he ruins the country. I totally DO NOT agree with this, but I can recognize what Obama is doing: Sending a signal to liberals that he too is sick of Bush.

I think that's right. Of course, it may or may not work, but I gather that's the strategy.

Democratic presidential candidate Barack Obama said he doesn't tell his wife he loves her any more, because “I love you” has become a substitute for “true love.” The Illinois Senator said he hopes to show his love by explaining his ideas about their relationship to her. Guess what the wife would think about that.

Democratic presidential candidate Barack Obama said he doesn't wear the American flag lapel pin because it has become a substitute for "true patriotism" since the Sept. 11, 2001 terrorist attacks.

Asked about the decision Wednesday in an interview with KCRG-TV in Cedar Rapids, Iowa, the Illinois senator said he stopped doing so shortly after the attacks and instead hoped to show his patriotism by explaining his ideas to citizens.

"The truth is that right after 9-11 I had a pin," Obama said. "Shortly after 9-11, particularly because as we're talking about the Iraq war, that became a substitute for I think true patriotism, which is speaking out on issues that are of importance to our national security.

"I decided I won't wear that pin on my chest," he said in the interview. "Instead, I'm going to try to tell the American people what I believe will make this country great, and hopefully that will be a testament to my patriotism."

But the essence is similar: Wearing a flag pin is not supposed to be an explanation or an argument, just as “I love you” is not supposed to be an explanation or an argument. It’s supposed to be a traditional statement of affection, powerful because it’s cliché.

If you’re in the sort of relationship in which you’ve never made such a statement — and here flag pin wearing is a little different than “I love you,” since most citizens who love their country don’t routinely say it — then you can indeed show your love in other ways. Returning to the analogy, you hear occasionally of old-fashioned couples who’ve never fallen into the “I love you” habit, but who love each other nonetheless.

Yet if you used to say this and then you stopped, the symbolic message is pretty powerful. And that’s true even though many people say “I love you” without meaning it (just as there are some who wear the flag pin but are just opportunists, not patriots). Even if this abuse of the phrase weakens its symbolism, an outright renunciation of the phrase retains its symbolism just fine.

The American people want a President who loves their country and who expresses that love, at an emotional as well as an intellectual level. For better or worse, a President Spock won’t get elected. Candidate Obama should know that.

The Boston Globe has an interesting article on a conference on secession co-sponsored by southern far-right secessionists (the League of the South) and far left secessionists from New England (the Middlebury Institute in Vermont, headed by longtime left-wing activist Kirkpatrick Sale).

I am not opposed to secession on principle. It can, in some circumstances, be a useful check on excessive central government power in a federal system. However, secession movements must be evaluated on the basis of the types of new governments they intend to establish. And, to put it mildly, I'm not a big fan of either of the ones on offer here.

To be clear, I don't think there is anything intrinsically racist about the idea of secession per se. But there are and have been people who support secession for racist reasons, and the League of the South falls in that category.

The Inevitability of Grading Curves:
In the comment thread to my post on the lawsuit over grading curves, commenter "Eli Rabett" writes:

It is not the job of a university to rank its students, it is the job of a university to educate them. If a student masters the work at an A or B level, and then gets knocked down to a C by curving, something is very wrong with the ethics of the teacher.

I think this reflects a very basic misunderstanding about grading, so I thought I would offer some thoughts in response.

The reality is that all grading is curved. The only differences are among grading on curves that are more or less explicit and more or less strict. Consider what it means to have "A level mastery" of a subject. What does that mean? There is no intrinsic meaning to an "A" level of mastery, or a "B" level, or a "C" level. Rather, these are relative levels of mastery based on expectations for what level of performance is acceptable or appropriate at different levels of education. The concept is inherently relative.

To see this, imagine you are a teacher and you are grading papers analyzing George Orwell's Animal Farm. You pick up and read a paper, and it reveals the level of insight and understanding you might expect from a 10th grader. What grade does it deserve? I think the answer depends on the circumstances. If you are a 6th grade English teacher grading the work of 6th graders, then the paper deserves an A; if you are an English professor teaching English graduate Ph.D. students, the same paper deserves an F. The paper is the same either way. It's just that we have a natural sense of scale — of a curve — for what level of insight and sophistication is to be expected at different levels of educational achievement.

Some grading schemes hide these judgments by relying on numbers. A score might be a 86.5 out of 100, or a 91.8 out of 100. Aren't these grades absolute rather than curved, with the first grade being an objective "B" and the later an objective "A-"? The answer is no. The common convention that an "A" range grade is a 90-100, a "B" range grade is 80-89, etc. is also just a curve; it's a common curve, but a curve nonetheless. It works on the premise that the professor who writes an exam uses a relative distribution of easy and difficult problems so that the scores will track the class's expected levels of achievement.

That is, the teacher will aim for a specific mix of easy, medium, and hard questions so that the likely mix of answers will produce something like the desired distribution of percentage correct answers and then converted into the desired distribution of letter grades. If the questions are too easy you get too many A's, and if they're too hard you get too many C's; the teacher aims for the right mix to get the right distrubution. This is also a curve, but students usually don't think about that because it's "hidden" in the level of difficulty of the question.

Controversy over the use of curves usually comes where curves are strict and explicit, imposing a specific distribution of grades in a class ex post rather than quietly aiming for that ex ante. This has the effect of making students much more aware of curves, heightening the sense that there is a clear difference between a "true" grade and a "curved" grade. The arguments for or against a strict curve are a lot like the debates over rules versus standards; there's a choice between giving professors more or less judgment about the relative performance of the class, and there are pros and cons to both approaches. But the choice in that setting concerns how classes are curved, not whether they are curved; whether students realize it or not, all grades are curved.

UPDATE: A number of readers take issue with my definition of a "curve." They reason that if you select a set scale ahead of time, there is no curve because the grading is "against the exam" rather than against the other students. But the point of my post is that grading is relative to a benchmark, and that benchmark sets the curve. Either the benchmark is the professor's hazy memory of the performance of past classes or it is the actual performance of that particular class. There are differences between the two approaches, but they are surprisingly small, and it's quite misleading to think of the hazy-past-performance benchmark as the absence of a curve.

Congrats to Jonathan and David for their good good fortune. Since they've been baby blogging (and because I just love this picture), I couldn't resist putting up a recent pic of Claire, who turned two in August. That's a matching ladybug raincoat and umbrella, if you were wondering.

[John Wood's] leg was amputated near the knee three years ago after a plane crash that killed his father, and Wood said he kept the leg so that it could be cremated with him when he dies.

After the plane crash, Wood said he fell on hard times and all his possessions were put into a Maiden Plaza Mini Storage building. He said he wrapped the embalmed leg in paper and put it in a small smoker.

Whisnant bought the smoker at the mini-warehouse auction, not knowing what was inside, and took it home.... [When he realized what it was,] he decided to get rid of the leg [by passing it along to the funeral home, which gave it to the police; the police in turn returned it to Wood] ....

When word got out about the leg, Shannon Whisnant said he saw how much interest people had in it and saw a chance to take advantage of the publicity. He had already charged admission to see just the smoker, $3 for adults, $1 for children....

Whisnant called the leg "a hell of a conversation piece" and offered Wood split custody of it. Whisnant said he planned on "writing some books and doing some movies." ...

[Earlier in the article:] "I'm considering all options at this point," Whisnant said. "You can't take a mattress full of cash from a man who bought it and has a receipt for it and give it to somebody else. I bought it."

However, police said Whisnant already gave up the leg when he called 911 and told dispatchers he was "grossed out" and wanted to get rid of it....

Critics of private military contractors sometimes claim that hiring "mercenaries" increases the risk of a military coup against the government. Perhaps private contractors don't have the same degree of loyalty to the state as the uniformed military does.

It is indeed true that mercenaries have sometimes launched coups against the governments that hire them (though most of the cases date back to Renaissance Italy or even earlier). However, the argument is another example of the fallacy I noted in my previous post: failing to apply the same standards to both private and governmental forces. Critics who claim that private contractors pose a special threat in regards to coups usually ignore the long and extensive history of military coups launched by government forces. Many of these coups are far more recent than any similar action by mercenaries. Virtually every country in Latin America and Africa has had at least one coup launched by government military forces since World War II. And they are far from unknown in many other parts of the world.

Moreover, there is some reason to fear that government military forces are actually more likely to launch a successful coup than private ones. Government forces usually have greater perceived legitimacy with the public than mercenaries and can more easily portray themselves as representing the "true" will of the nation against a supposedly corrupt civilian political establishment. That is in fact the usual propaganda line of military coup leaders in Latin American states. It is much harder for mercenaries to make similar claims in a believable way.

In the United States, I think there is very little danger of a coup by either private or government forces. Thus, this issue should not play a significant role in our debate. In some other countries, however, the issue is more significant. And it is important to properly weight the risks on each side.

I am a second-year associate and currently considering making a lateral move to another firm. One of the firms to which I have sent my resume has since asked for a writing sample.... The seminar papers I authored while in school were all on loaded topics (originalism, use of force issues). Additionally, given the time constraints of my workload as a junior associate, it would be very difficult to produce something from scratch within the next few days, in order to respond in a timely manner to the firm requesting the sample.

Under what circumstances, if any, may I use work I created at my current firm as a writing sample without asking my current firm for permission to do so? I do not want to let my current firm know I am trying to leave. Obviously, internal memoranda are out -- but what about motions filed with the court and thus in the public domain? Would this alleviate the need for permission, since nothing non-public would be submitted? I would redact identifying names, case numbers, etc., just to be safe.

Of course, this raises an additional problem -- as a junior associate my name is not on the signature line, a partner's is. I know some schools' guidelines for writing samples state that in such situations one must get the signing partner's approval -- which would again require me to reveal my intentions to the firm. What if I used my earlier draft of the motion, which had not been signed by anyone? The legal content of the motion all ended up in the submitted version -- and thus in the public domain, but there is no one else's name attached to it.

I have my own thoughts on the subject, but I thought I'd start by soliciting yours.

I'm watching CNN in Beijing, which keeps tut-tutting President Bush for saying "Burma," rather than "Myanmar," in his just-completed UN speech, as if this were merely another of his gaffes.

I'm with Bush. For nearly twenty years, ... I've followed arguments about the twists and turns of what to call the country in Burmese. The complications mainly involve what the various names say about the relations between the Burmese people proper and other ethnic groups within the nation.

But when it comes to referring to the nation in English, there's little debate. Myanmar is the name invented 18 years ago by the benighted junta .... When Westerners say "Myanmar," they're not being culturally respectful to the people of a beautiful but oppressed nation. (We don't call China Zhongguo or Germany Deutschland just because the locals do.) They're bowing to the whims of the generals who still imprison Aung San Suu Kyi....

My view: Both are linguistically proper, but I prefer Burma, both because it's the long-established name with which I grew up, and for the political reasons that Fallows mentions. On the other hand, I can't condemn those who don't want to make a political stand on the name, and who prefer Myanmar because it's the modern name, which they've now gotten used to.

Recent revelations that private military contractors employed by Blackwater may have committed atrocities and other abuses in Iraq have led many to call for an end to the use of private military contractors and their replacement with government personnel. Unfortunately, many of the anti-Blackwater/anti-privatization arguments are beset with typical fallacies that bedevil the debate over the role of government in society. To be clear, I don't know whether the use of private contractors should be abolished or not. I lack the expertise to say. Perhaps Blackwater should be fired; perhaps all private military contractors should be. Blackwater and its rivals do not actually represent full privatization (complete replacement of the government by the private sector). They represent a form of contracting out - the government hiring private contractors to do work it mandates. Nonetheless, several of the standard arguments against the use of private contractors contain major fallacies that often recur in debates over the role of government.

I. Failure to Apply the Same Standards to Both Alternatives.

Let's assume that private military contractors really do commit atrocities (I certainly don't doubt that it happens). That is not enough to prove that privatization is undesirable. After all, government military forces - including, sad to say, American ones - also commit atrocities. Yet, when US military personnel engage in such misconduct, no one seriously claims that that fact "proves" that they should all be replaced with private contractors.

Whenever we wage a large-scale war, especially one fought in a setting where it is sometimes difficult to tell civilians from enemy combatants, it's inevitable that some atrocities will be committed by our forces. The key question is: what institutional arrangements will minimize their occurrence? Privatization critics must do more than prove that Blackwater or other firms commit atrocities or engage in coverups. They must show that they are systematically more likely to do so than government employees would be in their place. Unfortunately, this comparative aspect of the question is usually neglected. Too often, privatization critics implicitly compare hypothetical perfect government employees with real-world, imperfect private contractors.

II. Double Standards in Assessing Motives.

Similar double standards apply to the way that privatization critics analyze motives. For example, private military contractors are often attacked as "mercenaries" interested only in profit. The problem here is that government personnel may also be motivated solely or primarily by self-interest. There is a reason why the Pentagon offers a wide variety of material incentives (e.g. - free college tuition, health and welfare benefits, etc.) for volunteers to enlist in the army and for key personnel to stay in. This is not to say that government military personnel are motivated solely by personal gain. Far from it. In reality, they surely have a wide range of motivations, including in many cases a sense of patriotic duty.

But the same is true of private military contractors. After all, most of the security personnel employed by Blackwater and its competitors are in fact former government soldiers, often ex-special forces. It would be surprising if such individuals were completely selfless patriots during their days in the military and then suddenly became self-seekers motivated solely by money once they sign on with Blackwater. In reality, they are probably more or less the same kinds of people in both phases of their careers. Just as military personnel may be motivated by a combination of patriotism and self-interest, so too may private contractors. Putting on a government uniform doesn't make selfishness disappear, and taking it off doesn't make it magically come back.

A closely related fallacy is the implicit assumption that warriors motivated by personal gain will necessarily commit more atrocities and abuses than those motivated by patriotism or other selfless considerations. This is far from obvious. Self-interested "mercenaries" may choose to refrain from atrocities precisely because they hurt the bottom line: by generating negative publicity for the firm and giving the local population incentives to target its personnel. Selfless motives, by contrast may in some cases increase the risk of atrocities (e.g. - if soldiers feel that atrocities will help them win, or if a strong sense of solidarity amongst themselves leads them to "dehumanize" the enemy). Whether self-interested soldiers will commit more abuses than selfless ones is an empirical question, not one that can be settled by a priori assumptions.

Thus, we have two unsupported assumptions about motives and privatization: assuming that the private sector is necessarily driven by self-interest alone, while government officials care only about the public interest; and assuming that selfless motives necessarily lead to better results. Either or both claims may actually be true in a particular instance. But they need to proven, not just asserted.

III. Ignoring the Potential Benefits of Competition.

If Blackwater or some other private contractor performs badly, it can be fired and replaced with one of its competitors. This is an important incentive for contractors to do a good job. By contrast, it is extremely difficult to abolish a failing government bureaucracy or - in many cases - even to reduce its funding.

The advantages of competition are important benefits of contracting out that have mostly been ignored in the Blackwater debate. They don't necessarily outweigh all other considerations, but they should certainly be a much bigger part of the discussion.

IV. Appeals to Mythical Tradition.

Finally, some privatization critics claim that the use of "mercenaries" violates a supposedly longstanding American tradition of hostility to military privatization, one that allegedly goes back to the Founding Fathers. They conveniently ignore the fact that the Continental Army in the Revolutionary War relied heavily on European mercenary officers, many of whom were motivated by profit more than principle. Without them, we might not have won our independence. For example, the German mercenary Baron von Steuben was the officer in charge of training the Continental Army, and credited by George Washington with playing a decisive role in the war. The United States also relied heavily on privateers to raid British seaborne commerce in both the Revolution and the War of 1812

The fact that the Founders made extensive use of mercenaries and privateers doesn't prove that we should permit military privatization today. Maybe the Founders were wrong, or maybe the utility of privatization has declined since the 1780s. It does, however, show that military privatization doesn't go against tradition in the way critics allege.

UPDATE: There is a common myth that military contractors in Iraq are exempt from liability for crimes they commit. This fallacy is refuted in this post by Laura Dickinson at Balkinization (a blog that, to understate the point, is not especially sympathetic to either privatization and Blackwater or the Bush Administration).
In any event, exemption from liability is surely not an inherent attribute of contracting out. Congress can adopt laws imposing whatever liability rules it wants on military contractors. Alternatively, the government can insist on including liability standards in the terms of the contracts themselves.

Steven Calabresi (my colleague at Northwestern) writes about originalism in the Wall Street Journal (it is available free here):

The Right Judicial Litmus Test

[T]he proper basis on which we should evaluate the Court’s performance in this term and in the future is not whether it reaches “conservative” or “liberal” results in constitutional cases, but whether it reaches results that are faithful to the Constitution as written and understood at the time of its adoption. Likewise, the test for presidential candidates on the judiciary should be whether they can be trusted to nominate Justices who will follow our written Constitution.

The belief that judges and Justices should decide constitutional cases on this basis is known in academic circles as “originalism.” This approach may seem so obvious that it should hardly need a name, let alone a defense.

Nevertheless, analysis of whether this was or was not what the Justices did was strikingly absent from most of the discussion about the Court’s last term. Indeed, the possibility that judges and Justices can even decide cases on the basis of the Constitution as written is the view only of a small, though growing, minority in the legal academy. Originalism is often dismissed as either hopelessly naïve or as cynical obfuscation. . . .

In fact, much of the complaining by the left about the Supreme Court’s decision last spring to uphold the federal partial birth abortion statute was that it was not a faithful effort to apply the Court’s abortion precedents as they had previously been understood. Many on the left claimed this was a profound threat to the rule of law.

There is no good reason, however, to think that the rule of law requires us to follow newly-minted Supreme Court precedent but not the Constitution. To the contrary, it is crystal clear that there will be many times when the exact opposite is the case.
The Court’s own power to decide constitutional questions derives only from the Constitution’s status, together with treaties and federal statutes, as “the supreme law of the land.” The Constitution’s character as law makes it binding on the courts of law, including the Supreme Court. This is what empowers those courts to decide what the Constitution means.

Accordingly, the Supreme Court must have the duty and power to overrule its own unconstitutional precedents, just as it has the duty and power to disregard unconstitutional statutes and treaties. This authority is well established and indeed has been recognized since the earliest days of the republic.

This authority is also a practical necessity. Because the Court is composed of human beings, it is inevitable that it will make mistakes. This includes big mistakes about the meaning of the Constitution that, left uncorrected, work a continuing, significant distortion on how our government functions. This is exactly what happened, for example, in Plessy v. Ferguson, where the Court upheld a law requiring segregated rail cars that violated the words of the Fourteenth Amendments.

One solution to a mistake like Plessy might be a constitutional amendment. But while amendments to overturn Supreme Court decisions have been proposed thousands of times in the 218 years of American history, only four have passed. A constitutional amendment can currently be blocked by one house of the legislature in 13 states. The 13 least-populous states comprise less than 5% of the U.S. population. In other words, an amendment could be supported by 95% of the population and yet it could still be blocked, even if all the amendment did was to restore the original meaning of the Constitution.

Thus, a constitutional amendment outlawing segregated schools, for example, would never have passed in 1954. In situations like this, fidelity to the Constitution and the rule of law absolutely demanded that the Supreme Court be able to correct its own mistake by, as in this situation, overruling Plessy root and branch.

Calabresi’s WSJ op-ed launches a newly published collection of essays on the rounds of the originalism debate that Calabresi and the Federalist Society helped to initiate a quarter century ago.

Although that debate has influenced my thinking considerably, I have trouble fully embracing any particular strand either of originalism or of the idea that used to be called the "living Constitution." As I get older, perhaps I might acquire enough wisdom on constitutional issues to develop a coherent judicial philosophy—or perhaps all that will happen is that my hair will become thinner and grayer.

Recent events in Burma have led some people to wonder about kind of guns controls Burma has. Below is what I've found in a first round of research. Commentators are urged to supply additional information.

A 1951 law bans possession of automatic weapons, grenades, and explosives with the intent to commit high treason. A rather narrowly-tailored law, at first glance.

However, the law states that the President can by decree add "any other arms or ammunition" to the banned list. And any person with a banned weapon is presumed guilty of intending to commit high treason, and required to prove his innocence:

Provided that, notwithstanding anything to the contrary contained in any other law for the time being in force, it shall be presumed, until the contrary is proved, in a prosecution under this section, that the person found going armed with; or in possession of, or having under his control any of the arms, ammunition or military stores specified herein, had the intention of committing the offence of High Treason.

Sections 96-106 of the Penal Code recognize the "right of private defence" of person and property, including the right to use deadly force against certain felonies, including a night-time home invasion.

The Online Burma/Myanmar Library has an excellent search engine, and many articles. There are a lot of dead links to the full text articles, but you can usually find the article via Yahoo, once you know the exact title. Here are some interesting articles I found:

A December 9, 2006 article in Kaowao News no. 121, the "Newsletter for social justice and freedom in Burma" reports:

Mon grass roots communities have urged the ceasefire group, New Mon State Party not to lay down their arms amid pressure given by the military regime. Public opinions have been heard during the party’s public campaign in Ye, Yepyu, and Three Pagodas Pass Townships under its administration this week.

“We (Mon public) cannot give up our arms to them. We have sacrificed for so many years. The SPDC will surely take away our rights if the NMSP gives up their arms,” said a villager at the public gathering on December 4, 2006 where NMSP leaders Nai Hongsar, Ong Htow Mon and Captain Jalon Htow talked to over 120 attendees at Palai Japan village, a sparsely populated area near Three Pagodas Pass Thai Burma border town.

There are a number of other articles to similar effect, of the government press praising disarmament, or ethnic resistance advocates warning against it.
An August 2005 article from The Irrawaddy, "How World War II Shaped Burma's Future," explains:

In the beginning, Aung San and his Burman nationalists had sided with the Japanese. His Burma Independence Army was armed and trained by the Japanese, while the Allied powers armed and equipped hill peoples such as the Karen and Kachin to fight the occupiers. Centuries of mistrust between the Burmans and the hill peoples resurfaced, and those wounds have not yet been healed. Even today, many Karen talk with bitterness about atrocities carried out against them by the BIA during the Japanese occupation, and the Kachin are proud to point out that they already had celebrated their victory manau in Myitkyina by the time the Burman nationalists in March 1945 turned their guns against the Japanese.

The arming of the hill peoples, and vast quantities of weapons left behind by the Japanese, meant that Burma's ethnic conflicts from the very beginning turned violent. The hill peoples had the means to form their own militias and armies and the first, the Karen National Defence Organisation, was set up in 1947, a year before independence. The Mon formed a similar militia in 1948, while the most militant of the Burman nationalists, the Communist Party of Burma, dismissed independence as a sham and resorted to armed struggle in April 1948. That war continued until 1989, when the hill-tribe rank-and-file of the CPB's army mutinied against the aging Burman leadership of the party and drove them into exile in China. But the army remains under a different name, the United Wa State Army, and although it has had a ceasefire agreement with the government in Rangoon since the mutiny, it still has at least 16,000 soldiers--and they are better armed and equipped than the CPB's army ever was.

An October 2005 report of the Thailand Burma Border Consortium (a Norwegian-funded organization which works closely with the UN) states:

Six percent of households [of displaced persons in eastern Burma] reported that they had at some point resorted to procuring a hand gun to minimize threats to safety and livlihoods. Given the threat of being suspected as either a rebel sympathizer by the SPDC or a government collaborator by the armed opposition, this gauge of the prevalence of assault weapons is considered high. Due to the breakdown in law and order and the ease of procurement, transport, concealment, and use, the prevalence of small arms is in itself a significant threat of violent insecurity.

(Executive Summary. Page 55 notes that some of the "hand guns" may be "simple hunting rifles.")

If you know more about the situation in Burma, please make a contribution to the Comments.

Wednesday, October 3, 2007

OLC in the Gonzales Years:
The Thursday New York Times has this story on the role of the Justice Department's Office of Legal Counsel under former Attorney General Alberto Gonzales. The whole thing is worth reading, but I was particularly interested in this judgment from Doug Kmiec:

Douglas W. Kmiec, who headed that office under President Ronald Reagan and the first President George Bush and wrote a book about it, said he believed the intense pressures of the campaign against terrorism have warped the office's proper role. "The office was designed to insulate against any need to be an advocate," said Mr. Kmiec, now a conservative scholar at Pepperdine University law school. But at times in recent years, Mr. Kmiec said, the office, headed by William H. Rehnquist and Antonin Scalia before they served on the Supreme Court, "lost its ability to say no." "The approach changed dramatically with opinions on the war on terror," Mr. Kmiec said. "The office became an advocate for the president’s policies."

Impeachment would certainly be justified if the accuser's lawyer (quoted in the article) is right to claim that Kent's alleged harrassment (the details of which are not publicly known) amounted a criminal offense.

Congress often exercises control over appointments to federal office by writing job qualifications and putting them directly into the statute creating the office. This practice is best examined by viewing the Appointments Clause not as a single entity, but as two related clauses that set up two very different methods of appointment: presidential nomination and Senate confirmation as the default method, and vesting in one of three authorized positions as an optional alternative method for certain types of officers. When creating an office, Congress must choose one of these methods for appointing the officer, but cannot create a hybrid method combining the two procedures.

In this article, I examine the text, history, and structure of the Constitution to determine what is required by each of the two appointments processes. I conclude that statutory qualifications are consistent with the Constitution's process for vested appointments, but inconsistent with the nomination and confirmation process.

I have several questions for which I was hoping the VC's well-informed readers could provide definitive citations. All the statements below are things that I have read or heard about the Rachel Corrie case and the International Solidarity Movement. I would appreciate any reader who could supply solid citations to affirm (or disprove) any of the following statements:

1. The International Solidarity Movement is an overseas extension of the Palistinian Solidarity Movement.

2. The ISM/PSM was/were founded by the Popular Front for the Liberation of Palestine.

3. On the fatal day that Corrie and her fellow ISM activists went to obstruct the Israeli bulldozer, they may well have believed that a pharmacist's home was the intended target. However, there is no evidence with contradicts the Israeli government's report stating that the operational objective was clearing brush, not home demolition.

4. The only eye-witnesses who statements support the claim that the bulldozer operator saw Corrie are ISM members.

Please don't use the comments to debate the Corrie case, or Israel issues in general. Please do supply information about the accuracy of the four statements supra.

Yesterday, I linked to a joke Justice Thomas made about not being invited to speak at Columbia unless he was a Middle East dictator with nuclear weapons. Keeping in mind that this was a joke and assumedly was not meant to be taken literally, it's still worth noting in fairness that informed sources tell me that Thomas has in fact been invited to speak at Columbia Law School, and has turned down the invitation. Moreover, Columbia Dean Schizer has made it clear (speaking for himself) that he thinks inviting Ahmedinejad was a bad idea. So, while the nub of Thomas's joke was that someone like Ahmedinejad may be more welcome in certain elite educational circles than he is, that's not true of Columbia Law School.

Law Professor Forced to Resign For Teaching Brown v. Board as "The Law of the Land":
Here's a dramatic story about the career of the late Professor Bill Murphy, via Eric Muller.

UPDATE: Professor Paul Secunda writes in the comments:

We would like to rectify past injustices at Ole Miss Law. In that vein, a forthcoming version of the Mississippi Law Journal (probably in Summer 2008) will be dedicated to Bill Murphy and feature tributes from various faculty members who both knew him and are proud of his legacy. It's not a lot, but it's a start.

Presidential candidates John Edwards and Barack Obama have posted responses to questions on antitrust policy to the American Antitrust Institute. Josh Wright comments on their pronouncements--Edwards here and Obama here.

My latest law review article, co-authored with Paul Gallant and Joanne D. Eisen, ignores the question of whether there is a human right of self-defense, or a related right to defensive arms. Rather, we examine how gun confiscation, or quasi-confiscatory gun licensing laws, are sometimes enforced in ways that violate other human rights. Our article provides case studies of Kenya and Uganda (gun prohibition enforced by cordon-and-search military attacks on villages) and South Africa (an abusively-enforced licensing system). The articles also provide the most comprehensive published collection of survey data about why people in various countries choose to own firearms. The article will be published in the Quinnipiac Law Review in early 2008.

I am thrilled to announce the arrival of Madeline Joyce Rorick Adler, who was delivered yesterday morning at 7:54am, weighing 5 lbs. 14.8 oz. It was a bumpy ride, but I am happy to report that mother and baby are now doing quite well and will come home this week. I expect Madeline will join the blogosphere in due course. No word yet on whether she'll adopt a pseudonym.

Alexy II, Patriarch of the Russian Orthodox Church recently made a speech before the Parliamentary Assembly of the Council of Europe denouncing homosexuality as "an illness" and a "distortion of the human personality, like kleptomania." He also claimed that homosexuality is part of "a new generation of rights that contradict morality, and [an example of] how human rights are used to justify immoral behavior."

Unfortunately, the ROC's current policies are an extension of its long and disreputable history of collaboration with both czarist and Soviet tyranny in Russia. Although there were certainly individual priests and lay activists who became dissidents under Soviet rule, the ROC leadership generally supported the communists once the latter consolidated their grip on power and removed those priests and bishops most opposed to their rule. As the Library of Congress puts it, "the church espoused and propagated Soviet foreign policy and furthered the [forcible] Russification of non-Russian believers, such as Orthodox Ukrainians and Belorussians."

There is, perhaps, a limit to the amount of condemnation the ROC deserves for its record in the Soviet era. Open resistance to the communists would have landed anyone engaged in it in a Gulag or worse; that degree of heroism is too much to expect as a matter of course. However, the fact remains that the ROC collaborated with the communists to a much greater extent than most of the Soviet Union's other religious groups (many of which engaged in active or at least passive resistance) and its record also pales in comparison with that of the Catholic Church in Eastern Europe, which played a leading role in organizing resistance to communist rule. The ROC's conduct under communism may deserve only limited censure, but it certainly does not justify placing any confidence in the Church's moral judgment.

And today, the ROC should reexamine and repudiate its past and present collaboration with tyranny before its leader presumes to lecture the Europeans on "morality" and human rights.

UPDATE: To avoid possible misinterpration of my point, I am not arguing that Alexy's position on homosexuality is wrong merely because he and the ROC have been egregiously wrong on other issues. That would be a logical fallacy. However, Alexy's critique of homosexuality is based not on logical reasoning but on an appeal to the moral authority of his Church and his "brothers in faith;" and, presumably, he was invited to address the Council of Europe because of his position in the ROC religious hierarchy, not because he has any independent standing as a deep thinker on morality and human rights. The ROC's overall record on morality and human rights is therefore relevant to our assessment of his speech. And that record is far from admirable.

UPDATE #2: I was going to write a brief response to some of the points made in the comments. But nearly all the things I wanted to say have already been said by other commenters. So, I will note just two points. First, I am struck by how so many more people are interested in the pros and cons of using the term "homophobia" (a tangential issue in the post) than in the ROC's longstanding record of collaboration with tyranny (the main focus of the post). Second, it is true as some have pointed out that many of the ROC's pre-1917 leaders were repressed and replaced by the communists. I noted that in the original post. This, however, is not enough to get the ROC fully off the hook for its record under communism. Other Soviet and East European churches were subjected to comparable or even greater repression under communism, and yet most did not end up collaborating with the communists to anything like the same degree. And, of course, the ROC has collaborated with Putin's tyranny, notwithstanding the fact that the risks of refusing to do so are much less than in the communist era.

UPDATE #3: It is perhaps worth noting that there is considerable continuity between the ideology and personnel of the Soviet-era ROC and those of today. For example, Alexy II was himself a high-ranking archbishop and Metropolitan under the Soviets - a position he could not have reached had he been opposed to the ROC's close relationship with the Communist regime. Thus, the Church's actions under communist rule are not mere ancient history, and remain relevant to any evaluation of its moral authority today.

Tuesday, October 2, 2007

I keep getting emails asking what I think about DePaul University's denial of tenure to Norman Finkelstein. The short answer is that while I certainly haven't tortured myself by reading everything Finkelstein has written, I've read enough to broadly agree with Cathy Young's assessment, which you can find here.

What I find irritating about the Finkelstein controversy it's almost always portrayed as a lightning rod for controversy because he is "anti-Israel." He certainly is anti-Israel, but the reason he attracts such enmity is that he uses rhetoric that is unmistakably anti-Semitic, including in contexts only tangentially related to Israel. Whether he's actually anti-Semitic (yes, I know he's ethnically Jewish; so?) or just uses anti-Semitism as a rhetorical prop in an attempt to stir the masses against the Jewish establishment in the hopes that this will ultimately weaken Israel, I don't know.

By now some of you are thinking, "there goes Bernstein conflating criticism of Israel with anti-Semitism." No, I'm conflating anti-Semitism with anti-Semitism. Writing that leading American Jewish activists "resemble stereotypes straight out of [Nazi newspaper] Der Sturmer" has nothing to do with criticizing Israel. Neither does claiming that American "Jewish elites" have "a mindset of Jewish superiority." If Pat Robertson had made these remarks instead of Finkelstein, is there any doubt that many of Finkelstein's staunchest allies would not hesitate to proclaim them anti-Semitic?

Both of these quotes can be found in his book, Beyond Chutzpah. But what about context? Here's the context for the first quote:

Legitimate questions can surely be posed regarding when and if Jews are acting as people who happen to be Jewish or acting "as Jews," and, on the latter occasions (which plainly do arise), regarding the actual breadth and limits of this "Jewish power," but these questions can only be answered empirically, not a priori with politically correct formulae. To foreclose inquiry on this topic as anti-Semitic is, intentionally or not, to shield Jews from legitimate scrutiny of their uses and abuses of formidable power. In an otherwise sensible treatment of the new anti-Semitism, Brian King maintains that "it is a form of anti-Semitism" if an accusation against Jews mimics an anti-Semitic stereotype such as the idea of Jews being "powerful, wealthy . . . pursuing [their] own selfish ends." Yet if Jews act out a Jewish stereotype, it plainly doesn't follow that they can't be committing the stereotypical act. Can't they commit a vile act even if it conforms to a Jewish stereotype? It is perhaps politically incorrect to recall but nonetheless a commonplace that potent stereotypes, like good propaganda, acquire their force from containing a kernel—and sometimes even more than a kernel—of truth. Should people like Abraham Foxman, Edgar Bronfman, and Rabbi Israel Singer get a free ride because [Finkelstein's italics] they resemble stereotypes straight out of Der Sturmer? [To give you some idea of how grossly offensive this is, here are some cartoons representing Jewish stereotypes in Der Sturmer.]

And heres the context of the second quote:

Jewish elites in the United States have enjoyed enormous prosperity. From this combination of economic and political power has sprung, unsurprisingly, a mindset of Jewish superiority. Wrapping themselves in the mantle of The Holocaust, these Jewish elites pretend—and, in their own solipsistic universe, perhaps imagine themselves—to be victims, dismissing any and all criticism as manifestations of "anti-Semitism." And, from this lethal brew of formidable power, chauvinistic arrogance, feigned (or imagined) victimhood, and Holocaust-immunity to criticism has sprung a terrifying recklessness and ruthlessness on the part of American Jewish elites. Alongside Israel, they are the main formentors of anti-Semitism in the world today. Coddling them is not the answer. They need to be stopped.

If anything, the context of these quotes makes them look worse!

Those so inclined can turn Finkelstein into a free speech martyr if they wish. But, putting aside the merits of his claim to tenure, it's fundamentally dishonest to suggest that he attracted notoriety and criticism simply because he's a critic of Israel. I'm waiting for the first, honest, defender of Finkelstein to say, "yes, he's guilty of anti-Semitism, and that anti-Semitism is directly related to the work on which his tenure relied, but I think DePaul should have granted him tenure anyway." It's certainly plausible to argue that the fact that one's work on Jews and the so-called "Holocaust Industry" is tainted by anti-Semitism should not be a barrier to tenure if the work otherwise makes a significant contribution to the literature, but I'm waiting for someone to forthrightly make the case.

I don't often agree with NOW, but they're certainly right on this issue. However, NOW President Kim Gandy is wrong to criticize the US Court of Appeals for the Fifth Circuit for not giving Kent a more severe punishment:

“The idea that any employee who has been found to engage in sufficient misconduct to justify a reprimand and a suspension from employment would then continue to draw a full salary from the taxpayers during that suspension is a shocking idea,” Gandy said. “It’s an outrage. He could go travel the world for four months. That’s not a punishment, that’s a reward.”

Article III of the Constitution prevents the Fifth Circuit from docking Kent's pay or permanently removing him from hearing cases. The only way to achieve that result is impeachment by the House of Representatives followed by a conviction in the Senate.

Thomas was talking about how he's been well-received at law schools around the country. But, he added, there are some elite law schools from which he does not expect an invitation. "About the only way I would get invited to Columbia is if I was a Middle East dictator with nuclear weapons."

Commenter WCB writes: "It would be nice if everyone who posts in the comments here could calm down, drop the name calling and have a civil discussion. It's started to sound like a war between the Daily Kos and Little Green Footballs around here."

I agree, and have been contemplating closing down the comments to my posts. We'll see what develops.

You probably knew that already, but I still found this quote from the ABA president's inaugural address in 1924 of interest:

In these days of so-called progressivism and advanced political economy, we find men in every community who jeer at that [Constitutional] Convention and belittle its work. They say . . . that the Constitution might have filled the need then, but is obsolete now. . . . These ignorant, unpatriotic unthinking disciples of communistic thought would tear down where they could not build. . . . They have never offered any constructive substitute, as indeed they could not, for while the Constitution may not be perfect, it at least has stood the test of nearly 150 years. . . . [T]he Lilliputians of experimental schemes must not tear asunder what wise men have joined together.

The publication of Clarence Thomas' memoir will focus new attention on the controversy over who was telling the truth about Anita Hill's charge that he sexually harrassed her. To my mind, the most interesting aspect of this debate is the way in which nearly all conservatives seem to believe Thomas, while nearly all liberals believe Hill. The few exceptions are striking precisely because they are so unusual.

Since only Thomas and Hill themselves really know what happened with any certainty, this degree of polarization is striking. Nothing in conservative ideology precludes the possibility that individual conservatives might engage in boorish and morally reprehensible private behavior of the sort Thomas is accused of; similarly, liberal ideology does not deny the possibility that a person in Hill's position might lie for political gain. Given the murkiness of the underlying facts, unbiased observers would not split so sharply along ideological lines on this issue. You would expect to see at least some significant number of liberals who believe Thomas, some conservatives who believe Hill, and many in both camps who aren't sure who to believe.

Some of the polarization was probably just a matter of political posturing. Conservatives did not want to lose a valuable Supreme Court seat (as they might have, if Thomas' nomination had been defeated and President George H.W. Bush were forced to nominate a centrist or liberal replacement comparable to Souter or Anthony Kennedy). Liberals, of course, sought Thomas' defeat for similar reasons.

However, most of the polarization over Thomas-Hill probably wasn't feigned. It was instead a consequence of the all-too-common assumption that our ideological adversaries are not only wrong but also evil - or at least far more likely to be so than those who agree with us. If you believe that liberals are, on average, likely to be morally corrupt, then it would be rational for you to assume that a liberal is more likely to be lying than a conservative and thus to automatically believe Thomas over Hill even in the absence of clear proof. And vice versa if you hold the reverse view.

I have previously criticized the unthinking equation of political ideology with moral virtue here, in the context of explaining why many people are excessively hostile to the idea of dating someone with a different political ideology. The two situations are very different, but the same phenomenon may be at work in each case. Both blanket condemnation of cross-ideological dating and the Thomas-Hill polarization are in large part the result of our unhealthy tendency to equate ideological disagreement with moral depravity.

UPDATE: Various commenters point out that the Thomas-Hill polarization can be explained by the possibility that conservatives are, for ideological reasons, generally less inclined to believe accusations of sexual harrassment than liberals are. There is some truth to this. But it fails to account for the fact that, just a few years later, most conservatives tended to believe and most liberals denied Paula Jones' sexual harrassment accusations against Bill Clinton. In such politically charged cases, the ideology of the accuser and accused seems to determine ideologues' reactions far more than their general perceptions of sexual harrassment.

ESPN sports columnist Bill Simmons' has updated his famous column on "Levels of Losing," which categorizes defeats by the level of pain that they inflict on the losing team's fans. His categories make a lot of sense, though he's wrong to claim that Game 6 of the 1986 World Series was the most horrendous Red Sox defeat ever (that dishonor belongs to Game 7 of the 2003 American League Championship Series, which was much worse because 1) it was far more easily preventable, 2) it was against the hated Yankees, and 3) I lived through both and the pain of '86 was far less than that of 2003)).

I wonder if Simmons' categories could be applied to political and legal defeats. For example, when my side lost the Kelo case, it was a Level XVI Princeton Principle loss (everyone expected us to lose much worse and the resulting publicity benefited us more than our opponents). The Democrats' defeat in the 2004 presidential election was probably a Level XV Achilles'Heel (they had a good chance to win, but flaws in the party and its candidate undermined them). And the Republican defeat in the 2006 election was a Level IX "Full-Fledged Butt-Kicking," as everything that could possibly go wrong for the GOP did, thanks to a combination of bad luck and the Party's own numerous disastrous errors.

Monday, October 1, 2007

McCain: "the Constitution established the United States of America as a Christian nation."

Number of times the Constitution actually mentions Christianity: 0.

Number of times the Constitution forbids the establishment of religion by Congress: 1.

Undoubtedly, given the demographics of the time, the Framers expected that the American population would be primarily Christian, and some of them believed that the ideas that inspired the Declaration and Constitution were Christian in origin (though that cuts both ways, because southern slavery advocates believed that slavery, protected to some extent by the original Constitution, was divinely ordained). But that's not quite the same as suggesting that the American constitution establishes a "Christian nation."

First Questions on First Monday:
Today was the first day of oral argument in the new Term, and the Supreme Court held argument in two cases. The same Justice was the first to ask questions in each. Who was it?

Since 2002, the percentage of women in law schools has declined each year, according to the American Bar Association (ABA). Five years ago, women made up 49% of law school enrollment. This year, 46.9% of law school students are women. And while the number of applicants overall has dropped in the past two years, the percentage decline in the number of women has been greater. Although observers say a variety of factors contributed to the dip, the prevailing message is that fewer women want a lawyer's life. The decrease comes at a time when the earning power of women in their 20s is outpacing men of the same age, at least in several major U.S. metropolitan areas. According to research from Department of Sociology at Queens College in New York, women in their 20s in Dallas, for example, earn 20% more than men of the same age. In New York, they earn 17% more.

With Clarence Thomas so much in the news these days, I was thinking about whether left-wing political activists made a terrible mistake (from their own perspective) regarding Clarence Thomas, pushing him, permanently, farther to the right then he would have ended up on his own.

If one looks at Thomas's biography, it's clear that he is a very thoughtful man, whose pre-Court ideology ranged all over the place, from young Catholic seminarian to radical student activist to non-religious libertarian (including an apparent Ayn Rand phase), to Straussian natural law follower, and, finally, to Catholic conservative with a libertarian streak. I can't remember if I saw this in an excerpt from his book or from one of his interviews, but while everyone assumes that he's always been anti-abortion, he claims to have told John Danforth in the mid-70s regarding abortion that the government has no right to tell women what to do with their bodies!

It's also clear that, despite his reputation in some circles, Thomas has always thought himself to be concerned with the fate of his fellow blacks. Thomas, for example, told his white conservative EEOC employees that being against affirmative action is not a "civil rights agenda," that one has to think about how one can create an alternative agenda that would aid blacks within a conservative/libertarian framework. One of those employees, Clint Bolick, went on to co-found the Institute for Justice, which has won renown for championing school choice, the rights of inner-city entrepreneurs, and opposing uses of eminent domain that tend to hurt the poor.

In short, Thomas did not need to become the left's enemy. His permanent ideological trajectory was likely somewhere to the right, but he could have been a bridge between the mainstream liberal civil rights community and the conservative establishment that wasn't especially concerned about the fate of the African American population.

Moreover, given that Thomas was only 42 when he reached the Court, and given the rather eclectic sources of his ideology (Thomas Sowell, Richard Wright, Rand, his grandfather, etc.), his views over time may have evolved in very interesting ways. It's unlikely, again, that he would have wound up back on the left, but his views may have been in some respects more congenial to the left than they are now.

I had occasion to get to know Thomas somewhat when he was at the EEOC and a judge on the D.C. Circuit. Even then, he was obviously somewhat bitter about how his left-wing critics treated him. From what I've seen, his new book and the interviews he's given make it clear that, not surprisingly, he's much more bitter about how his confirmation hearings progressed, and the often implicitly (and sometimes explicitly) racist attacks he has faced as a Justice. His views on affirmative action have almost certainly hardened, given that he has personally experienced what he always suspected was the fatal flaws of racial preferences--that the beneficiaries of such preferences are suspected of not being "qualified" no matter what their achievements, and that such beneficiaries are also expected to express eternal gratitude toward, and fealty to, the liberal establishment for granting them these preferences.

In short, by treating Thomas as an enemy, and not just someone with whom they had sharp and sincere disagreements, Thomas's harsh critics made him into an enemy. Thomas, who had a wild ideological ride for many years, seems to have settled into his current worldview (including his newfound religiosity) just after, and a result of, his confirmation hearings. Given that he has essentially no respect for the legal establishment (such as Yale Law School, which he refuses to visit or allow to honor him), mainstream civil rights organizations, or the mainstream media, all of whom he blames for his confirmation ordeal, he's not in much of a position to be influenced by any of them. Meanwhile, the ordeal seems to have bonded him with various friends in the DC conservative establishment who supported him through the confirmation.

Of course, it's possible that Thomas's views would have ended up in exactly the same place even if his adversaries had treated him with more respect. And, while I don't agree with Thomas on everything, I can't say that I'm unhappy overall with his performance as Justice, especially compared to his colleagues. But it's still interesting to consider what intellectual path Thomas may have taken that were essentially closed off to him (or that he closed off) because of the unsuccessful campaign against him.

UPDATE: Just to be clear, I didn't find Thomas to be a bitter person generally. In fact, when he was talking about anything other than prominent liberal activists who had it in for him when he was EEOC chair, he was about as pleasant, engaging, and fun a conversationalist as I've met, and very charismatic too (which is why the Bushies made a HUGE mistake in overcoaching him for his hearings--if you compare the Thomas of the original hearings with the unscripted Thomas of the Hill-Thomas hearings, you will see what I mean), not to mention his amazing, infectious, laugh.

Come to think of it, perhaps a better description than "bitter" would be "contemptuous" of his adversaries, or at least the ones who treated him as an Uncle Tom/traitor-to-his-race enemy.

Further UPDATE: Commenter Jim puts it well: "Nobody's opinions, legal or otherwise, exist in a vacuum. Most people read a variety of thinkers, both ones they agree with and those with whom they disagree but hold in high esteem. Obviously by treating him contemptuously, people who might have been in that second category for Justice Thomas, prevented themselves from having a significant impact on Thomas. That's only natural, and it doesn't reflect poorly on Thomas."

More from Justice Thomas, and the Results of the Reader Poll:
Both segments of Justice Thomas's appearance on 60 Minutes yesterday have been posted online; see the video links from this page. In addition, Jan Crawford Greenburg did a series of interviews with Justice Thomas that you can read about here.

With 655 votes registered so far, the results of the VC Reader Poll on Justice Thomas's "60 Minutes" interview are very lopsided: About 2/3 of responding readers came away from the interview with an improved view of Justice Thomas, with that group split evenly between those whose views of Justice Thomas became "significantly" more favorable and those whose views became "somewhat" more favorable. Only 10% of readers had a worse view of Justice Thomas after watching the interview, and the remaining 25% or so registered no change in their view.

Opening Day:
As I once noted, following the Supreme Court is a bit like following professional baseball. Summer is the off-season, and the World Series is the string of cases handed down in the last week of the Term at the end of June. When the season ends, you either celebrate the victories of your team or shrug and say, "well, there’s always next year" (especially if you can get some promising new talent brought up from the minors). You can't buy hot dogs and beer during oral argument, but that's just a quirky tradition and may change under the new Chief Justice.

28 U.S.C. § 2 states that "the Supreme Court shall hold at the seat of government a term of court commencing on the first Monday in October of each year". This means today is kind of like opening day at the Supreme Court. They really should have the President throw out the first petition, but instead the day begins pretty much like all the other ones. At least we can sing an appropriate song, to the tune of "Take me out to the ball game":

Take me out to the law gameTake me out to the Court,Grant some petitions for certiorariI don't care if the opinions are scary!Let me root, root, root for respondent,If he doesn’t win activism's to blame,For it's 3, 4, 5 votes to win at the Supreme Court game.

Sunday, September 30, 2007

Reader Poll on Justice Thomas's Appearance on "60 Minutes":
Tonight Justice Thomas appeared on the CBS show "60 Minutes" and was interviewed for more than a half hour. Here's a reader poll question for VC readers who watched the show — and please, only answer if you watched the show.

After you watched Justice Thomas on 60 Minutes, how did your opinion of him change, if at all?

Houston Chronicle columnist Rick Casey has a good article on the Fifth Circuit investigation into the sexual harrassment claims against Judge Samuel B. Kent.

Casey makes two important points. First, federal law requires the US Court of Appeals for the Fifth Circuit to keep secret the evidence obtained in its investigation. For this reason, it is wrong to infer that the Fifth Circuit judges are keeping the information secret in order to somehow help Kent cover up his misconduct. If you want to study the details of relevant statute for yourself, it is 28 U.S.C. 360.

Second, there actually isn't very much that the Fifth Circuit can do to punish Kent. Article III of the Constitution prevents them from removing him from his position or docking his pay. It is unlikely that the Circuit could impose a sanction much more severe than the (unusual) public reprimand and compelled temporary leave that they have already administered. The only way to forcibly remove Kent from the bench is by means of impeachment by Congress. That is why I suggested in my last post that the House of Representatives should investigate the charges against Kent in detail, and make a determination on whether to proceed with an impeachment vote (which would be followed by a trial in the Senate, if it passes).

Casey also argues that the evidence collected by investigations of judicial misconduct should be made public. There is some merit to his view. However, I would be reluctant to establish a blanket rule in favor of disclosure; some judicial employees or other witnesses might be unwilling to assist investigators if they knew their statements would automatically be made public. The public interest in disclosure has to be balanced against the need to guarantee confidentiality to some witnesses in cases where essential evidence might be impossible to obtain without it. I don't have the expertise needed to determine exactly where the line should be drawn. But perhaps there should be a presumption in favor of disclosure that nevertheless gives investigators the option of guaranteeing confidentiality in some cases.

Sunday Song Lyric:
Nothing profound this week, nor anything particularly classic -- just something current and fun. Nickelback's "Rockstar" seems to capture our culture's fascination and obsession with celebrity lifestyles, the glamour, the debauchery, and the emptiness. Here's a taste.

I'm through with standing in line
to clubs we'll never get in
It's like the bottom of the ninth
and I'm never gonna win
This life hasn't turned out
quite the way I want it to be . . . .

I'm gonna trade this life
For fortune and fame
I'd even cut my hair
And change my name

'Cause we all just
wanna be big rockstars
And live in hilltop houses
driving fifteen cars
The girls come easy and
the drugs come cheap
We'll all stay skinny
'cause we just won't eat
And we'll hang out in the coolest bars
In the VIP with the movie stars
Every good gold digger's
gonna wind up there
Every Playboy bunny
with her bleach blond hair
And we'll hide out in the private rooms
With the latest dictionary and
today's who's who
They'll get you anything
with that evil smile
Everybody's got a
drug dealer on speed dial
Hey hey I wanna be a rockstar
Hey hey I wanna be a rockstar

The full lyrics are available on Nickelback's website here. The video, featuring quite a few lip-synching cameos, is here.

In 1925, the Supreme Court upheld a warrantless automobile search against a Fourth Amendment challenge. The dissent argued that Fourth Amendment protections should apply to cars as well to homes:

And it is argued that the words and history of this section indicate the intent of Congress to distinguish between the necessity for warrants in order to search private dwelling and the right to search automobiles without one. Evidently Congress regarded the searching of private dwellings as matter of much graver consequence than some other searches and distinguished between them by declaring the former criminal. But the connection between this distinction and the legality of plaintiffs in error's arrest is not apparent. Nor can I find reason for inquiring concerning the validity of the distinction under the Fourth Amendment. Of course, the distinction is valid, and so are some seizures. But what of it? The act made nothing legal which theretofore was unlawful, and to conclude that by declaring the unauthorized search of a private dwelling criminal Congress intended to remove ancient restrictions from other searches and from arrests as well, would seem impossible.

While the Fourth Amendment denounces only unreasonable seizures unreasonableness often depends upon the means adopted. Here the seizure followed an unlawful arrest, and therefore became itself unlawful-as plainly unlawful as the seizure within the home so vigorously denounced in Weeks v. United States...

I would like to comment briefly on the controversy surrounding Judge Samuel B. Kent, the Galveston, Texas federal district judge who was recently disciplined by the Fifth Circuit Court of Appeals for sexual harrassment. Since I clerked for Judge Jerry E. Smith of the Fifth Circuit in 2001-2002, it is important to emphasize that this post is based solely on publicly available information and not on any privileged information that I may have had access to during my clerkship. All factual claims in the post are based on published sources that I have linked to. Also, I should note that the post reflects only my own opinions and not those of Judge Smith or other Fifth Circuit judges.

That said, interested readers should know that this is far from the first time that serious issues have been raised regarding Judge Kent's judicial ethics. Indeed, it is no secret that Kent is a notorious figure in the Texas legal community and perhaps even nationally.

I'm not sure whether Judge Kent's abuses have reached a point where Congress should impeach him. Much depends on how serious the underlying facts of the sexual harrassment incident are. So far, both the Fifth Circuit (whose personnel are bound by confidentiality rules) and the accuser have maintained a public silence about the details of the case. For obvious separation of powers reasons, the impeachment power should be used only in extreme cases. However, I do think that matters have reached a point where Congress should investigate the issue and give the possibility of impeachment serious consideration.

UPDATE: A few commenters claim that I should reveal any confidential information I might know about the Kent case even in spite of the court rules that forbid such revelations. I don't agree. Many ex-employees from both government agencies and private firms are restricted from speaking about some aspects of their work by confidentiality rules. Such rules can be overriden by a subpoena from a court or (sometimes) a congressional investigative committee. In this case, both congressional investigators and prosecutors who might wish to look into Judge Kent's conduct are likely have a fairly good understanding of how the judiciary works, and therefore could identify court employees whose testimony might be useful.

But it would be both illegal and unjustifiable for the ex-employees to violate confidentiality rules merely because they personally believe that revealing the information in question is desirable. That would undermine the public interest purposes served by the rules and would allow individual ex-officials to take the law into their own hands. If you think (as I, to some extent, do) that law clerk confidentiality rules should be less strict than they are, the proper solution is to get Congress or the Judicial Conference of the United States to change them.

As for suggestions that I am somehow covering up for Kent, if I wanted to do that, I would not have written a post likely to attract additional public attention to his misconduct.

Recall that at Ahmadinejad's recent speech at Columbia, he responded to a question about Iran's oppression of homosexuals by claiming that "in Iran we don't have homosexuals like in your country." His statement was met with a chorus of boos and catcalls, the only thing he said that really riled up the politically correct crowd of Morningside Heights.

Well, it may come as a surprise to Columbia faculty and students to learn that a current professor at Columbia has argued that there are no homosexuals in the entire Arab world, except for a few who have been brainwashed into believing they have a homosexual identity by an aggressive Western homosexual missionizing movement he calls "Gay International." The article is called, "Re-Orienting Desire: The Gay International and the Arab World," and it appears in Volume 14, issue 2 of the journal Public Culture, and was elaborated upon in a book, Desiring Arabs, published by University of Chicago Press (UPDATE: BTW, I read the article, which is accessible through my GMU library account, but not the book). According to the author, "It is the very discourse of the Gay International which produces homosexuals, as well as gays and lesbians, where they do not exist" (emphasis added).

The author doesn't deny that same-sex sexual contact exists in Arab countries, but claims that the category of "homosexual" is purely a Western one exported to the Arab world by Western cultural imperialists. He suggests that by encouraging Arabs to adopt a Western homosexual identity, westernized Arab homosexuals have naturally provoked a counter-reaction against the importation of decadent Western culture into their societies. The article, to say, the least, is not at all sympathetic with the Western gay rights movements, and the author could easily write, replacing "Iran" with "the Arab world," "in the Arab world we don't have homosexuals like in your country." (See here for a good critique of the author's thesis.)

Oh, and the author/professor is Joseph Massad, whose name has come up in this blog many times before because of his "creative" scholarship, such as claiming that the movie "Exodus tells the story of the Zionist hijacking of a ship from Cyprus to Palestine by a Zionist Haganah commander." (As I've noted previously, this is analogous to saying that Schindler's List was a movie about Jews taking a working vacation in Poland.)

Massad, of course, is a current darling of the far Left, because friends of Israel have raised questions regarding his alleged discrimination against Israeli students and pro-Israel students, and about his scholarship. I guess this means that in certain circles, even Ahmadinejad-ish ideology regarding gays can be forgiven so long as one can portray oneself as a martyr to the struggle against Israel and its American friends.

UPDATE: I just discovered that Columbia History Professor Richard Bulliet, who acted as the go-between arranging for Ahmadinejad's speech at Columbia, has this to say (in an interview to be broadcast Sunday morning) about the relationship between Ahmadinejad's and Massad's views (link to interview transcript here):

DeDAPPER: Two things that I noted. One, when the question that led to this
was about the persecution and actual execution of gay people in Iran, why do you do that, he says there are no gay people. But the thing that I noted and you were in the audience, so I was only watching on TV, is he seemed--there were people that had clapped for things he had said in the audience and as it sounds like as many who were opposed to him. But on that one, it sounded like the entire audience is laughing at him and he seemed a little surprised that even people who'd clapped for him were laughing. Was that the case?

Prof. BULLIET: But that was a kind of a shocking thing. No one had ever heard him ask that question. Never heard him reply to that question. The irony is that one of the most controversial professors at Columbia, Professor Joseph Massad, has recently written a book called "Desiring Arabs" in which he says exactly the same thing, that homosexuals of the sort you have in America, that is to say where you have movies about homosexuality, you have queer theory, you have a gay rights movement and so forth.

DeDAPPER: There's an open gay culture, yeah.

Prof. BULLIET: Yeah. An open gay culture. He says that isn't what you have in the Arab world or in the Middle East. You have a long history of same sex relations that takes a variety of forms. Is not defined as gay or not gay. And Massad would say that the whole notion that gay culture is the same the world wide is an imposition of Western cultural imperialism. But people haven't read Massad's book yet, and so they aren't quite aware that that sort of gay denial of that type actually is academically respectable. Certainly, Ahmadinejad has not read that book.